P. v. Newton

Filed 9/28/07 P. v. Newton CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury found appellant Cardell Newton guilty of stalking (Pen. Code,  646.9, subd. (a)) and making criminal threats against two different victims (Pen. Code,  422), and the trial court sentenced him to a total of three years eight months imprisonment. On appeal, appellant argues the courts imposition of an upper term sentence for the stalking charge was an abuse of discretion and violated his constitutional right to a jury trial. (See Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) We affirm the judgment.

BACKGROUND

I The Offense

In early 2004, appellant began having a sexual relationship with Tarub Smith, a young woman who lived in his neighborhood. Shortly after they began dating, Smith was dismayed to learn she was pregnant. After she told appellant, he became verbally abusive toward her, and she ended the relationship. Appellant moved away a couple months later but returned sometimes to watch Smith. He would park across the street and sit for hours, watching Smiths house. Once, when appellant was parked outside in May 2005 (after Smiths baby had been born), Smith observed appellant and a companion apparently selling marijuana. She reported this information to the police, and about 20 minutes later officers arrived, arrested appellant and towed away his truck. After this incident, Smith saw appellant in the area almost every day. He complained that Smith got his truck towed and threatened to harm her or shoot her if she came outside. He would walk past her house with his hands in his pocket or under his shirt, as if he were carrying a concealed pistol. Smith had seen a handgun at appellants apartment once during their relationship.

After Smith called the police on one occasion to report appellant for disturbing the peace based on his behavior outside her house, an officer advised her to get a restraining order against appellant. She did not immediately pursue such an order, and during the fall of 2005 appellant continued hanging out in front of her house every day, walking past with his hands placed as if holding a pistol. He called Smith obscene names and threatened to put her and her 72-year-old mother, with whom she lived, in black dresses. Smith and her mother believed this comment referred to the black dresses people are sometimes buried in. Smith was frightened of appellant and obtained a temporary restraining order against him in December 2005. She asked her mothers friend to serve the order, but both times the friend tried to do so appellant ran away. Smith forged the friends signature on a proof of service and, based on this forgery, obtained a permanent restraining order against appellant in January 2006. Thereafter, Smith called the police repeatedly to enforce the order. Although appellant was usually gone by the time they arrived, on March 3, 2006, after appellant approached and yelled obscenities at Smith through her apartment window, the police were able to place him in custody. The court then issued a criminal protective order requiring appellant to stay 100 yards away from Smiths residence. After that, Smith continued to see appellant in the area, and once she saw him insert a small screw or nail into her cars tire, causing it to deflate.

On April 6, 2006, appellant confronted Smith in front of her home when she returned from the grocery store with her mother and daughter. He made an obscene gesture and swore at Smith and threatened again to put Smith and her mother in black dresses. Appellant looked agitated, and Smith felt both frightened and frustrated. When appellant drove off, Smith followed him and called the police when he parked. Appellant was arrested, but he returned to Smiths apartment again on April 11, 2006, after he was released from custody. He came to the gate yelling insults and obscenities and again threatened to put Smith and her mother in black dresses. Two days later, Smith heard appellant telling friends outside her apartment that he was planning to wait for her and her mother to go to sleep that night because he had a .38 for both of them. Smith called the police again and stayed on the line until appellant was arrested.

II. Trial and Sentencing

Appellant was charged by information with stalking (Pen. Code,  646.9, subd. (a)), two counts of making criminal threats against Smith and one count of making criminal threats against Smiths mother (Pen. Code,  422).[1] The case was tried to a jury, and appellant testified in his own defense. He denied owning a gun during the time he knew Smith and denied harassing or threatening Smith, explaining he came to the area to visit with his friends. The jury returned verdicts finding appellant guilty of stalking Smith between January and April 2006 and guilty of making criminal threats against Smith and her mother on April 11, 2006. The jury found him not guilty of another charge alleging he made criminal threats against Smith on April 6, 2006. After receiving a report from the probation department, the court sent appellant to the Department of Corrections and Rehabilitation for a diagnostic evaluation as to whether he was a suitable candidate for prison commitment or probation. (Pen. Code,  1203.03.) The diagnostic study and the probation department both recommended that appellant serve a state prison sentence.

On November 20, 2006, the trial court announced its decision to sentence appellant to an aggravated term of three years on the stalking charge. As to the two criminal threats counts, the court observed both were strike offenses and it could impose consecutive sentencing because the threats were made against different victims. However, the court decided to grant appellants motion and reduce one of these counts to a misdemeanor under Penal Code section 17, subdivision (b), explaining it did so based on a belief that an aggravated sentence for the stalking count encompasses the penalty. Specifically, the court stated it would be overly punitive to treat the threats as a felony strike offense in addition to imposing an aggravated sentence term. The court explained its reasons for imposing an upper-term sentence as follows: There are several aggravating factors that I believe overcome the mitigating factors. The circumstances in aggravation on Count One are that . . . [] . . . [] . . .Miss Smith was . . . particularly vulnerable in that she has a very small infant daughter, and this occurred in and around her residence. And she was unable to get away from the particular situation because it recurred so many times, and it did occur in her residence. [] Secondly, I do note that Mr. Newton has four felony prior convictions, and he was in prison in Texas twice. [] Thirdly, he committed these acts while he was on his own recognizance on another matter, and he violated a court order that he not contact or harass Tarub Smith and was ordered to stay a hundred yards away from her. [] And, fourthly, that . . . Mr. Newton has not expressed remorse or any kind of acknowledgment of wrongdoing in these proceedings.

In addition to the three-year term for the stalking charge, the court imposed a consecutive eight-month sentence for the count alleging criminal threats against Smiths mother, for a total prison sentence of three years eight months. Appellant was also ordered to have no contact with Smith, her mother or her daughter for a period of 10 years.

DISCUSSION

On appeal, appellant argues the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial by imposing an upper-term sentence based on factors that were not admitted or found true by a jury. (See Cunningham, supra, 127 S.Ct. at pp. 860, 871.) In the event there is no constitutional violation, appellant contends the court abused its discretion in sentencing him to an upper term.

I. Upper Term Sentence Justified by Recidivism

In Cunningham, the United States Supreme Court concluded Californias determinate sentencing law violates a defendants right to a jury trial because under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Prior to Cunningham, Californias determinate sentencing law premised the imposition of an upper term sentence on the existence of aggravating circumstances, but it permitted these aggravating circumstances to be found by a judge, not a jury, and based on only a preponderance of the evidence. The high court concluded these aspects of our states sentencing system violated the bright-line rule announced in Apprendiv. New Jersey (2000) 530 U.S. 466 (Apprendi): Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Apprendi, supra,] 530 U.S., at 490, 120 S.Ct. 2348. (Cunningham, supra, 127 S.Ct. at p. 868.)

On remand from the United States Supreme Court, our highest court concluded imposition of an upper term sentence does not violate a defendants right to a jury trial where at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 806.) The Supreme Court reasoned that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. [Citation.] (Id. at p. 813.) Because the existence of a single aggravating factor is sufficient to render a defendant eligible for an upper term sentence (People v. Osband (1996) 13 Cal.4th 622, 728), the Supreme Court concluded that when one aggravating factor has been established in accordance with federal constitutional requirements, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum.  (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.)

Here, the trial court listed four circumstances it considered in aggravation of appellants sentence: (1) vulnerability of the victim; (2) appellants prior criminal history; (3) commission of the crimes in violation of a court order and while appellant was released on his own recognizance; and (4) no expression of remorse. One of these aggravating circumstancesappellants criminal historywas exempt from the constitutional requirement of an admission or jury trial. The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely[ v. Washington (2004)] 542 U.S. [296,] 301 [(Blakely]); Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, 523 U.S. at p. 243.) (People v. Black, supra, 41 Cal.4th at p. 818.)

The record indicates that when he resided in Texas appellant sustained three convictions for drug possession, in 1984, 1986 and 1988, and a fourth conviction for evading arrest in 1998. Appellant served two prison terms in Texas (of three years and six years) for the drug convictions. Although appellant insists these convictions were not sufficiently numerous or serious to warrant considering them in aggravation of his sentence, we disagree. California Rules of Court, rule 4.421 provides that a trial court may consider as circumstances in aggravation facts showing that a defendants prior convictions as an adult . . . are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), and that a defendant has served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)). Appellants criminal record satisfies both of these considerations. Even if appellant is correct that his 1998 conviction was for a misdemeanor charge of evading arrest, and not another felony, his four prior convictions are sufficiently numerous to justify the trial courts finding that California Rules of Court, rule 4.421(b)(2) applies. Likewise, appellants two prior prison terms constitute an aggravating factor under California Rules of Court, rule 4.421(b)(3). It makes no difference that these convictions and prison terms occurred in Texas, rather than California. (See, e.g., People v. Palmer (2006) 142 Cal.App.4th 724, 734 [upholding use of out-of-state misdemeanor convictions, for which there was no jury trial right, to enhance punishment for current California offense].) Moreover, appellant was not entitled to a jury trial to determine whether his prior convictions were numerous or increasingly serious, or whether his prior prison terms were served. (People v. Black, supra, 41 Cal.4th at p. 819.)

The trial court properly found an aggravating circumstance based on appellants prior criminal history (Cal. Rules of Court, rule 4.421(b)(2)-(3)), and this aggravating circumstance was sufficient to make appellant eligible for an upper term sentence without further factual findings from a jury. (People v. Black, supra, 41 Cal.4th at p. 818.) Accordingly, imposition of an upper term sentence did not violate his rights under Sixth and Fourteenth Amendments.

II. No Abuse of Discretion to Impose Upper Term

Appellant also argues the trial court abused its discretion in sentencing him to an upper term based on his prior convictions. Appellants argument seems to assume that because his prior criminal history was the only aggravating circumstance that could be used to impose additional punishment consistent with Blakely and Cunningham, whether the trial courts imposition of an upper term sentence was justified must be evaluated with respect to this factor alone. The Supreme Court has suggested our review is not so circumscribed. So long as one aggravating circumstance comporting with the Sixth Amendment renders a defendant eligible for an upper term sentence, federal constitutional requirements are satisfied, and judicial factfinding on . . . additional aggravating circumstances is not unconstitutional. (People v. Black, supra, 41 Cal.4th at p. 815.) Indeed, the court recently explained, such factfinding serves an important function in guiding the trial courts exercise of discretion to choose an appropriate term from among the range authorized for the defendants offense. (Id. at pp. 815-816.)

Generally, determination of the appropriate term is within the trial courts broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. [Citation.] (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Here, the trial court observed, inter alia, that the victim was especially vulnerable because she was harassed in her residence and while she was in the presence of her elderly mother and infant daughter. The court also observed that appellant had committed the charged offenses while released from custody in another matter and showed no remorse or acknowledgment of wrongdoing. Even if we were to disregard these facts because they were not found by a jury, we would uphold the trial courts decision to impose an upper term sentence based on appellants criminal history and prior prison terms. A single factor in aggravation will support imposition of an upper term. [Citation.] (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Considering appellants prior felony convictions and two prison terms, imposition of the upper term was not arbitrary or irrational.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] The information initially charged appellant with stalking in violation of a court order under (Pen. Code,  646.9, subd. (b)), and included a separate misdemeanor charge of disobeying a domestic relations court order (Pen. Code,  273.6, subd. (a)), but the prosecution later amended the information to alter the stalking charge and dismiss the misdemeanor count.